Topic 3 The Separation of Powers revision notes I) •
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Separation of of powers in general
Developed by Aristotle, John Locke, furthered by Monstesuieu - Idealis Idealistt descr descript iption ion of the the Englis English h const constitu itutio tion n - 3 bran branch ches es of gove goverrnmen nmentt (leg (legis isla lati tive ve,, judi judici cial al,, execut ecutiv ive) e) to correspond to the three functions - ll should should be exer exercis cised ed b! b! di"e di"ere rent nt peop people le - #egis #egislat latur ure e and execu executiv tive e should should have have powers powers to limi limitt and chec$ chec$ one another % notion of &chec$s and balances' b! which the three branch branches es might might legiti legitimat matel! el! inuen inuence ce or even even impose impose certai certain n limits on the actions of one another A political theory, theory, not a le!al principle pres prescr crib ibes es what what ough oughtt to happ happen en if a part partic icul ular ar goal goal is to be achieved "or#s of separation of powers$ a) *ure *ure % all 3 functions functions complete completel! l! separate separate b) *artial, artial, based on on chec$s and and balances balances (+S) (+S) Traditionally, the doctrine reuired a threefold classi%cation of functions - but but now now depe depends nds on on the arran arrangem gement ents s of the the state state In In +, the processes of law-ma$ing, administration and adjudication are not clearl! separated however, still have to as$ whether powers are appropriatel! allocated and whether e"ective chec$ mechanisms are in place &radley and 'win! () threefold #eanin! of the doctrine of sep of powers a) .he same same person person should should not form form part of more more than one of the governmental governmental bodies b) /over /overnm nment ental al organ organs s should should not contr control ol or interf interfer ere e with with each each other's wor$ c) 0ne organ organ of governme government nt sh shoul ould d not exer exercis cise e the functio functions ns of another *hy do we need separation of powers+ - 1ontes 1ontes2ui 2uieu eu % princi principle ple helps helps to avoid avoid t!ra t!rann! nn! - ohn ohn #oc$ #oc$e % prin princi cipl ple e conc concer erne ned d with with e4cie e4cienc nc! ! of gover governm nmen entt and avoidance of t!rann!
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1unro - aimed at avoiding absolutism b! preventing the monopol! of power
ritiue of the principle of separation of powers - Marshall It's impossible to de5ne with precision what the exact functions of government are and to determine to whom the! should be allocated udicial independence is alwa!s ver! important but there is a fre2uent fusion between legislative and executive branches(as in +) .he doctrine is therefore far to imprecise and incoherent to form the basis in the anal!sis or criti2ue of the constitution - John Locke 6 there are no material di"erences (onl! formal and procedural) between legislature, judiciar! and executive, so the principle fails to explain wh! certain tas$s should be given to one rather than the other .he principle is irrelevant as a safeguard from t!rann! % what prevents it is the democratic control through the 7ouse of 8ommons and the part! s!stem Defendin! the principle of the separation of powers - &arendt6 it is possible to de5ne in general terms the three functions, which are allocated b! a constitution to particular bodies or institutions Such a distribution is enforceable b! courts and the! are entitled to ta$e the 5nal decision in practice of whether the function is judicial, executive or legislative - .he separation of powers reinforces democrac!, since citi9ens expect that the elected *arliament will ta$e most of the fundamental decisions which a"ects them and the principle ensures it is so - .he allocation of functions is a wa! for achieving the avoidance of arbitrar! government and t!rann! It therefore doesn't matter so much whether powers are allocated precisel! to the right institution - .he pure principle of sep of powers does not ta$e into account functions of government which do not fall exactl! within one of the three divisions, while the partial sep of powers does - .he principle should hence be explained as a networ$ of rules and branches which ensure that no power of concentration ends up in the hands of one - Madison$ .he principle does not operate in vacuum and, setting aside its theoretical defects, it can be seen that it helps the courts to protect the individual's rights and to prevent one branch from accumulating excessive powers - &a!ehot$ although there is no e"ective separation of powers in the sense of chec$s and balances between legislature and
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executive in +, but the doctrine pla!s a role in the + constitution % its purpose is to protect individual's libert! (through the division of power) and not identif! the best holder for a particular $ind of power &arber$ the core of the principle is e4cienc!, not libert! pure separation of powers is impractical and some overlap of function (li$e in +) is actuall! welcomed
ii) Separation of powers in + •
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Le!islature and e-ecutive - :alter ;agehot6 &the e4cient secret of the English constitution ma! be described as the close union, the nearl! complete fusion of the executive and legislative power' - Example6 *arliamentar! executive, which is headed b! the ministers (under the eform ct ?@@A abolished the o4ce of #ord 8hancellor which could have previousl! been cited as a classic example of a fusion of powers % this was done to enhance judicial independence and to preserve the sep of powers between the legislature and the judiciar! - Bice 8hancellor's role as head of judiciar! was also abolished - .he dual role of the #aw #ords, who until recentl! sat as #ords of ppeal in 0rdinar! in the highest court of appeal, in addition to participating in debates and legislative functions of the +pper
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7ouse has been amended b! the ?@@A ct =ollowing its implementation in ?@@C, the #aw #ords were removed from the 7ouse of #ords and became new justices of the Supreme 8ourt ?@@A ct ensured that Bice 8hancellor will onl! be able to appoint judges as recommended b! the newl! created udicial ppointments 8ommission % this will lessen the executive control of the judiciar! 8ommon law % judge made lawD oversteps the legislative function of the legislature ( #ord Ste!n in ;rown % judges to and must ma$e law in the gaps left b! *arliament' Some matters are particularl! thought of as re2uiring judicial creativit! #ord /o"6 the development of law b! judges is di"erent from legislation, but although the boundar! exists, it varies from case to a case' .he 2uestion is where such boundar! has to be drawn 8onsider Shaw v DPP % here, the 7# essentiall! made a new o"ence of conspirac! to corrupt public morals % a decision at odds with the principle of sep of powers
Judicial independence - *reserves the partial separation of powers - #ord Ste!n in Anderson % the constitution never rigidl! embraced the principle of separation of powers and the legislature and executive are close Separation of judiciar! and legislative and executive branches is a strong principle of +'s government s!stem and is enforced through judicial independence, access to justice and the rule of law - .urpin and .om$ins argue that the courts have onl! considered the principle of sep of powers as a juridical principle, hence failing to transform it into a general principle of constitutional law - 8ase example6 Anderson whether it is right for the executive to have the power to determine how long a convicted o"ender will remain in custod! and is the 5xing of the tari" a sentencing exercise % the court defended its judicial function, in accepting that the 5xing of tari" was a sentencing exercise and should be left up to the courts to exercise .he imposition of a sentence was a part of criminal trial and the 7ome Sec was not independent of the executive hence, this was a clear violation of the principle of sep of powers - udicial independence is now guaranteed b! s3 of the ?@@A ct % the 5rst such guarantee in statutor! form % it re2uires the #ord 8hancellor to uphold judicial independence and to refrain from see$ing to inuence judicial decisions - Sub judice rule - a constitutional principle which states that *arliament should not interfere in or prejudice judicial decisions
.he rule applies to debates, motions and
/elationship between the courts and the Parlia#ent - **Pepper v Hart - 7# held that, subject to an! 2uestion of *arl privilege, the rule excluding reference to *arliamentar! material as an aid to statutor! interpretation should be relaxed as to permit such reference where legislation was ambiguous or obscure, or led to absurdit! 7eld that use of ministerial statements as an aid to construction of ambiguous legislation did not violate article C of the ;ill of >ights GHC #ord ;ridge stated that reference to 7ansard should be allowed, but onl! in rare cases % he also failed to see how issues relating to increased costs of litigation for the plainti" could justif! the court continuing to wear blin$ers that conceal the vital clue to what was the actual intention of *arliament In enacting the provisions - 0avana!h argues that the rule allowing reference to 7ansard and hence allowing the courts to construe ambiguities b! reference to what individual members have said in *arliament amounts to enforcing &un-enacted intentions', which have never become a binding law .his undermines the rationale and integrit! of legislative process If statements of ministers are accepted b! the courts, the executive is e"ectivel! given a power to ma$e law- this cannot be reconciled with constitutional principle of parliament's onl! power to legislate .he executive is also allowed to intrude upon judicial function - **Wilson % 2uali5ed *epper v 7art in ? wa!s6
a) 1inisterial statements will be assessed a lot more carefull! when referring to 7ansard b) Such statements will not be given the force of law, but will referred to as an optional &bac$ground material' b! the courts - 0avana!h argues that following Wilson the courts have a total discretion of whether to adopt or depart from ministerial statements, no matter how clear the! are, and to adopt its own views instead .his can be interpreted in ? wa!s6 a) .he relationship between the courts and the *arliament were brought bac$ to its usual self, in that the courts will continue mainl! referring to the &enacted intentions' of *arliament when performing their function of judicial interpretation b) ;! retaining that choice, the courts have increased the scope of their function and got dangerousl! close to overstepping the boundaries reected in the partial doctrine of separation of powers
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Separation of powers is reco!nised by the co##on law - #ord Fiploc$ in Duport Steels v Sirs said that the ;ritish constitution is 5rml! based on the separation of powers in that *arliament ma$es the laws and the judiciar! interpret them In this case, separation of powers was used to draw a distinction between the legislative and judicial functions with a view to $eeping the judiciar! within bounds - In M v Home Ofce #ord .empleman emphasised that *arliament ma$es the laws, the executive carr! the laws into e"ect and the judiciar! enforce them - In Fire Brigades nion case, #ord 1ustill discussed the doctrine in his dissenting judgement, where he said that6 a) *arliament, the executive and the courts each have their distinct and largel! exclusive domain b) *arliament has a largel! unchallengeable right to ma$e whatever laws it thin$s right c) .he executive carries on the administration of the countr! d) .he courts interpret the laws and see that the! are obe!ed
iii) Separation of powers after the 7> GCC
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a) Fistribution of powers between the legislature and the executive Loveland - .he ct gives too much power to the government at the expense of *arliament (sG@(?) of 7> GCC % if a 1inister considers there
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are compelling reasons for proceeding under this section, he ma! b! order ma$e such amendments to the legislation as he considers necessar! to remove the incompatibilit!' 'win! - SG@(?) represents a substantial concession b! the government comparing to the initial proposed clause and the result is that the principle of primar! legislation being amended or repealed b! primar! legislation onl! remains intact - .he stipulation as to the &compelling reasons' should be seen as a form of a residual power and one which in an! event will be subject to judicial review Loveland in response to 'win! - Even if administrative law constraints are placed on the minister in terms of judicial review, the! are of extremel! loose nature If one ta$es human rights seriousl!, then an! breach might be thought to be serious enough to fall under the de5nition of &compelling reasons' and as such re2uire immediate remedial action b! the minister - .he courts (in relation to judicial review) might be reluctant to stri$e down a remedial action following a declaration of incompatibilit! b! a superior court
b) Fistribution of powers between the legislature and the courts •
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S3 of 1/A 24 - the courts are instructed to read and give e"ect to legislation, so far as is possible, in a wa! which is compatible with the 8onvention rights % hence, *arliament has prescribed a principle of construction to the courts something that has not been done before Purposive approach a de facto insertion of additional clauses into legislation b! the courts a techni2ue hard to reconcile with the traditional principle of sep of powers (*arliament has a legislative role, courts an interpretative role) !vA - Lord Steyn &In accordance with the will of *arliament as reected in s3 it will sometimes be necessar! to adopt an interpretation which linguisticall! ma! appear strained .he techni2ues to be used will involve the reading down of express language in statute but also the implications of provisions declaration of incompatibilit! is a measure of last resort' - Lord 1ope &8ompatibilit! with 8onvention rights is the sole guiding principle ;ut the rule is onl! a rule of interpretation It
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does not entitle the judges to act as legislators8ompatibilit! is to be achieved onl! so far as this is possible*lainl! this will not be possible if the legislation contains provisions which expressl! contradict the meaning which the enactment would have to be given to ma$e it compatible' "haidan v "odin Mendo#a - Lord 5icholls con5rmed #ord Ste!n's approach in > v , but went on to stress the importance of preserving the intentions of *arliament and the principle of separation of powers between the *arliament and the courts .he courts recognised the potential dangers of ta$ing the principle of interpretation too far and overstepping the traditional boundar! between *arliament and the court 0avana!h has suggested that such a distinction is onl! useful in so far as such a distinction between the legislation and the interpretation can be drawn She went on to state that in so far as 7> is concerned the courts both ma$e and appl! the law c) Fistribution of powers between executive and the courts
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'-ercise of .udicial review and the test of proportionality - .he courts have traditionall! been reluctant to appl! it as a ground for review of government's actions % the &necessar! in a democratic societ!' test re2uires much higher form of scrutin! that traditional grounds of review under administrative law 6nitial approach of the courts - Lord Steyn in Dal$ % there is an overlap between the tradition grounds for review and the proportionalit! test, as most cases would be decided the same wa! whichever one is adopted 7owever, the latter re2uires a higher intensit! of review Proportionality review % what is it+ - the courts have to as$ themselves whether the limitation of the right in 2uestion was necessar! in a democratic societ! in respect to the objectives it was intended to serve shift of power from executive towards the courts as to matters of substanceJ - 8ontrast with Lord 1ope in Dohert$ v Birmingham %ouncil where he suggested that proportionalit! is simpl! an additional ground of review and thus should not call for extreme statements purporting a shift of power from executive to the courts Principle of deference % what is it+ the courts have been cautious in their application of 8onvention (a culture of judicial deference has developed in te courts, in that
judges can be rather reluctant to interfere with laws enacted b! democraticall! elected *arliament) - Lord 1ope in &e'ilene % in some circumstances it will be appropriate for the courts to recognised that there is an area of judgement within which the judiciar! will defer, on democratic grounds, to the considered opinion of the elected bod! or person whose act or decision is said to be incompatible with the 8onvention'
